Act 46 suit filed in court

Posted
Thursday, December 20, 2018 6:42 pm

By Susan Smallheer, Brattleboro Reformer

MONTPELIER — The legal challenge brought by 31 school boards across the state — representing predominantly small rural schools — was filed Thursday in Washington Superior Court, setting up a legal confrontation over the Act 46 forced mergers of school districts now underway.

The lawsuit, filed by attorneys David Kelley, Charles Merriman and Ines McGillion, claimed the state Agency of Education and the state Board of Education had misinterpreted its powers under Act 46, and was acting in an unconstitutional way in forcing many town school districts to merge, losing their independence and representation in the process.

Joining the 31 school districts were seven select boards, one planning commission, taxpayers, parents and students, from Westminster to Montgomery. The attorneys for the appeal, Athens School District et al vs. the State Board of Education et al, said they would be filing a companion request for an expedited hearing and a stay on Friday, with hopes that Washington Superior Court Judge Mary Miles Teachout could hold a hearing as soon as Monday.

The Athens et al lawsuit is the second legal challenge filed in recent days regarding the forced merger of school districts under Act 46. Stowe, Elmore and Morrisville filed their own lawsuit last week, and Kelley said he expected a third lawsuit from Huntington would be filed in the next few days.

Kelley, a Craftsbury Common lawyer and former chairman of his town's school board, said he hoped for a quick day in court.

"The issues are compelling and immediate," said Kelley, who said that in his 40 years of practicing law, including being involved in the bankruptcies of Vermont ski areas, this was the most complicated legal challenge he'd worked on.

"There are so many appellants and we raise a wide spectrum of issues," he said. "Act 46 was not a well-written law."

Windham County school districts joining the challenge include Athens, Grafton, Westminster, Bellows Falls Union High School, and Windham, as well as several parents, students and grandparents from Westminster and Dummerston.

"If upheld, the Board's 'casual dismissal of statute' will have lasting impacts for decades, perhaps even centuries, to come," Kelley wrote. "It is already tearing communities apart and pitting towns against each other. It is harming our students, our schools, the very fabric of rural life, the democratic process, checks and balances, and the foundational notion that governance requires consent of the governed."

Ted Fisher, a spokesman for the Vermont Department of Education, said the agency did not comment on pending lawsuits.

The legal challenge is an appeal of a final decision in late November outlining all the forced mergers it was imposing on school districts.

Jack Bryar of Grafton, a member of both the Grafton School Board and the Bellows Falls Union School Board, said Act 46 is "unhinged from any reality" of how Vermont school boards run their schools.

He said one key challenge dealt with what he said was the "unlawful seizure of property" with the transfer of one town's school, and the awarding of it to another school district. "And it gives me their debt to share," he said.

Bryar said one of the stated goals of Act 46 — reduction of school spending — was a myth. "We have petitioned the state repeatedly to show us where the savings are," he said, noting one Windham County merged school district was now facing a 10 percent budget increase. "Chaos costs money and it's not the way to save money," he said.

A group of school board members across the state has formed The Alliance of Vermont School Board Members and has been raising money to challenge the state ruling.

Kelley said he and the other lawyers were working essentially as volunteers.

Merriman, a former assistant attorney general and chairman of his local elementary school board in Middlesex, said the culture of Vermont is really at stake.

"Vermont is founded on the town system, not the county system. And yes, there are real difficulties with the economics of education in a rural state. But what are we losing? We're losing an amazing amount of talent," Merriman said, referring to the hundreds of school board members. "Act 46 is a very superintendent-friendly act and it gives short shrift to democracy."

School districts and towns banding together to fight the decisions by the state Board of Education and the Agency of Education include the Athens School District, Barnard School District, Barnard Select Board, Bellows Falls Union High School, Berlin School District, Brighton School District, Brownington Select Board, Calais School District, Calais Select Board, Charleston School District, Coventry School District, Craftsbury School District, Dummerston School District, Franklin School District, Franklin Select Board, Glover School District, Grafton School District, Greensboro School District and Greensboro Select Board.

Also, Highgate School District, Irasburg Planning Commission, Irasburg School District, Irasburg Select Board, Jay/Westfield School District, Lakeview Union School District, Lowell School District, Middlesex School District, Montgomery School District, Montgomergy Select Board, Newbury School District, Newport Town School District, Richford School District, Sheldon School District, Stannard School District, Troy School District, Westminster School District, Windham School District, Worcester School District, and individuals Sarah, Matthew, Chloe and Ethan Silva, all of Montgomery; Jonathan, Ivy and Audrey Betts, all of Montgomery; Bruce, Elise Manning, Nellie and John Douglas Sterling; all of Westminster; Paul and Jo Jean Normandeau, both of Dummerston; Dorothy Naylor, Cameron Scott Thompson, both of Calais; and Ashley Randall of Lowell.

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